Karnataka High Court
Sri.Sangappa S/O Irappa Chandaragi vs Sri.Rajesab S/O Kashimsab Dabadi on 5 December, 2023
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RSA No. 100688 of 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100688 OF 2019 (SP)
BETWEEN:
SRI.SANGAPPA S/O. IRAPPA CHANDARAGI,
AGED ABOUT 57 YEARS, OCC: AGRICULTURE,
R/AT: ITNAL, TQ: SAUNDATTI,
DIST: BELAGAVI.
...APPELLANT
(BY SMT. DEEPA DODDATTI, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
SRI. RAJESAB S/O. KASHIMSAB DABADI,
AGED ABOUT 62 YEARS, OCC: FACTORY OWNER,
R/AT: HIREKOPPA, TQ: RAMADURG,
DIST: BELAGAVI-590001.
...RESPONDENT
Digitally
signed by
VISHAL
(BY SRI. K.L. PATIL, ADVOCATE FOR SOLE RESPONDENT)
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
THIS REGULAR SECOND APPEAL IS FILED UNDER
2023.12.14
11:34:04 SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
+0530
AGAINST THE JUDGMENT & DECREE DATED 20.02.2018
PASSED IN R.A.NO.26/2017 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
06.04.2017, PASSED IN O.S. NO.124/2012 ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, SAUNDATTI, DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE OF CONTRACT.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 100688 of 2019
JUDGMENT
The present second appeal by the defendant assailing
the concurrent findings of facts of the Courts below,
whereby, the suit seeking for specific performance of
contract was decreed directing the defendant herein to
execute the registered sale deed in favour of the plaintiff
by receiving the balance consideration amount of
₹30,000/-.
2. The parties herein are referred to as per their
rankings before the trial Court, for the sake of
convenience.
3. Suit seeking for specific performance of contract
of sale in respect of the property bearing Sy. No.337/1
measuring 2 acres out of 12 acres 32 guntas situated at
Itnal village, taluka Saundatti, district Belagavi
(hereinafter referred to as "the suit property" for the sake
of convenience). It is averred in the plaint that defendant
is the owner of the suit property and the defendant
intended to sell the suit property for family necessity and
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the plaintiff agreed to purchase for consideration of
Rs.80,000/- and ₹50,000/- was received as earnest
amount by the defendant and ₹30,000/- was to be paid at
the time of registration of the sale deed. It is further
stated that the plaintiff was ever ready and willing to
perform his part of contract and though, the plaintiff
requested the defendant to come forward to execute the
sale deed, the defendant went on postponing the same for
one or the other reason. In spite of the legal notice issued
by the plaintiff, the defendant has not come forward for
execution of the sale deed.
4. Pursuant to the suit summons issued by the
trial Court, the defendant appeared and filed his written
statement inter alia contending that the suit schedule
property is the ancestral property of the defendant and his
two sons and the defendant alone was not competent to
enter into a contract with the plaintiff without the consent
of the sons. The agreement entered as alleged by the
plaintiff is denied by the defendant.
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5. The trial Court on the basis of the pleadings
framed the following issues:
1. Whether the plaintiff proves that the
defendant on 17.09.2010 executed an
agreement of sale in his favour in respect of
suit property, agreeing to sale it for sale
consideration of ₹80,000/- and received
earnest money of ₹50,000/-?
2. Whether the plaintiff proves that he has
always been ready and willing to perform his
part of contract?
3. Whether the defendant proves the alleged
fraud committed by the plaintiff in creation of
agreement of sale?
4. Whether the plaintiff is entitled for relief of
specific performance of contract as prayed?
6. The trial Court on the basis of the pleadings,
oral and documentary evidence held that:
i) the plaintiff proves that the defendant has
executed an agreement of sale on
17.09.2010 in respect of the suit schedule
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property for sale consideration of ₹80,000/-
and has received an earnest amount of
₹50,000/-.
ii) that the plaintiff has proved about the
plaintiff being is always ready and willing to
perform his part of contract.
iii) that the defendant failed to prove that
alleged fraud committed by the plaintiff in
creation of the agreement of sale.
The trial Court vide judgment and decree, decreed the
suit, directing the defendant to execute the registered sale
deed in favour of the plaintiff by receiving the balance
consideration amount.
7. Aggrieved by which, the defendant preferred an
appeal before the first appellate Court. The first appellate
Court while reconsidering and re-appreciating the entire
oral and documentary evidence independently, concurred
with the judgment and decree of the trial Court. Against
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the concurrent findings of facts, the present second appeal
by the defendant.
8. Heard Smt.Deepa Doddatti for Sri. Mrutyunjay
Tata Bangi, learned counsel for the appellant and
Smt. Padmaja Tadapatri for Sri.K.L.Patil learned counsel
appearing for the respondent and perused the Judgment
and decree of the Courts below.
9. The Courts below have held that the plaintiff
has proved the execution of the agreement of sale and the
readiness and willingness on the part of the plaintiff to
perform his part of contract as per Ex.P.3, which is
registered document and the defendant failed to establish
any fraud, act on the part of the plaintiff in execution of
Ex.P.3. The Courts below exercised its discretion under
Section 20 of the Specific Relief Act and held that the
plaintiff is entitled for relief of specific performance and
the discretion exercised by the Courts below cannot be
said to be arbitrary.
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10. Learned counsel for the respondent has placed
on record the order sheet in EP. No.12/2017 contending
that the possession warrant has been executed and the
possession demarcated property has been handed over to
the decree holder in EP. No.12/2017 and the possession
has been delivered to the respondent herein.
11. The said memo is taken on record.
12. The first appellate Court being the last fact
finding Court has re-appreciated and has arrived at a
conclusion that the material placed before the Court
clearly evidences that the plaintiff has established his
readiness and willingness to perform his part of contract
and the agreement at Ex.P.3 being a registered agreement
and in light of the fact that the defendant did not dispute
about his visit to the office of the Sub-Registrar and
putting his thumb impression on Ex.P.3, the first appellate
Court has rightly held that the plaintiff is entitled for the
specific performance. The manner in which, the Courts
below have taken into consideration the oral and
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documentary evidence on record, this Court is of the
considered view that the concurrent finding of facts of the
Courts below does not warrant any interference by this
Court and accordingly no substantial question of law arises
for consideration in the present appeal to be dealt with
under Section 100 CPC.
13. For the foregoing reasons, this Court pass the
following:
ORDER
i) The regular second appeal is hereby
dismissed.
ii) The Judgment and decree of the Courts
below stands confirmed.
In light of the disposal of the second appeal, pending
applications, if any, do not survive for consideration and
the same are accordingly disposed of.
Sd/-
JUDGE
PJ, CT: UMD
